Brussels, 14/01/2015 (Agence Europe) - Non-governmental organisations (NGOs) may not ask the European Commission to conduct an internal review of an environmental regulation or challenge in the Court of Justice of the EU any refusal by the Commission to do so, decided European judges in a ruling (joined cases C-404/12 P and C-405/12 P) delivered on Tuesday 13 January. This decision annuls a previous ruling (T 338/08) by the General Court of the EU which took the opposite view.
The European Commission, latterly directly supported by the Czech Republic, has been challenged in this case since 2008 by two environmental NGOs, Stichting Natuur en Milieu and the Pesticide Action Network Europe. In 2008, the two NGOs called on the Commission to conduct an internal review of the regulation (149/2008) that set maximum pesticide residue levels.
The two NGOs based their legal argument on Regulation 1367/2006, which incorporated the international Aarhus Convention on access to information, public participation in decision-making and access to justice into Community law. The Commission refused the request on the grounds that only “administrative acts of individual scope” may be subject to the internal re-examination procedure.
In 2012, the General Court found in favour of the two applicants. It said that the Aarhus Convention had, in part, been incorrectly transposed into Community law and thus was illegal. The point at issue, according to the Court, lay in the way in which Regulation 1367/2006 defines an administrative act, which alone may by the object of a request for internal re-examination, as having to have “individual scope”. Consequently, the Court, taking the view that the Aarhus Convention should take precedence over secondary EU law, annulled the Commission decisions not to proceed with the internal review of the regulation as called for by the two NGOs.
The Court of Justice has now reversed that decision. It considered that the Aarhus convention is sufficiently unclear as not to confer such rights on individuals or NGOs, unlike other conventions, such as those governing trade (World Trade Organisation agreements of the GATT). Contracting parties to the Aarhus Convention thus have wide scope as to the definition of arrangements for implementing administrative or legal procedures, the Court added.
In a press release after the ruling was handed down, the Pesticide Action Network Europe did not conceal its confusion and surprise at the judges' decision, after the General Court had come to the opposite conclusion in 2012. It notes that Advocate General Niilo Jaaskinen released his advice, upholding the right of access to court for NGOs. “The Luxembourg court fails to put in place the proper balance and grant NGOs the right to also challenge the implementing work of Commission”, with the result that “NGOs will not be able to pursue their mission in court and protect people and the environment against undermining EU-rules, watering-down of agreed standards”, the NGO states. (JK)